Developmental Disabilities & High School Graduation
by Robert K. Crabtree

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Question:

The school system told us that our son will graduate from high school this June. He is developmentally disabled and has been on IEP's since kindergarten. He is now 18 and far from ready to enter the work force or live independently, though people have said he has the potential. We understand that once he graduates he will not receive any more special education services, but the school system says he has achieved all the goals of his IEP and is now ready to go. Can they force him to graduate? (They have been talking to him directly, too, and urging him to take his diploma so he can graduate with his classmates.)

Answer:

There are really three questions here: one concerning the circumstances under which a student with special education needs can be graduated; another concerning what procedures and legal remedies are available to parents and/or students when a student has been graduated prematurely; and a third concerning who can act for the student once s/he reaches the age of majority.

IDEA

Under IDEA, whenever a school system proposes to change "the identification, evaluation, or educational placement of [a child with special education needs] or the provision of a free appropriate public education to the child," the school must provide "written prior notice to the parents." [20 U.S.C. §1415(b)-(1)(C)] Under current federal regulations that notice must include a description of other options considered, a description of the evaluations which justify the action, and a statement of reasons why the other options were rejected. [34 C.F.R. §300.505 (This appears in §300.503 of the proposed new regulations under IDEA 1997.)]

A student's eligibility to receive special education services ends either when s/he reaches age 21 (or 22 in some states) or graduates from high school. Thus in most cases the granting of a high school diploma will terminate services. Because of this, graduation is treated as a change of placement under special education law, and parents are therefore entitled to receive notice of their right to dispute the award of a diploma and to use the due process system to try to prevent loss of services. In one leading case, Stock v. Massachusetts Hospital School, 392 Mass. 205 (1984), the court ordered rescission of a high school diploma declaring that it would be "insidious if graduation proceedings were employed as a device to circumvent the Federal mandate by prematurely terminating special education services."

This is not to say that, for example, a student with a mild learning disability, who requires only minor classroom modifications cannot be expected to earn the same credits toward graduation as a non-disabled peer and graduate upon completing those credits. But students with more severe disabilities typically need to be measured on a different scale. For such a student the TEAM needs to establish criteria for graduation that are based on IEP goals and objectives specific to that student. Criteria for the delivery of a diploma, or the termination of special education services before the student "ages out," should in good sense be based on achievement of functional living skills and employability as well as meeting academic standards.

What you can do

In your case, it sounds like your son may not have achieved sufficient skills to be employable. The issue of graduation should be discussed within the TEAM process and criteria established that are appropriate for him. If not, you and your son may reject the IEP and use your state's special education due process system to contest the lack of appropriate graduation standards. If the school system insists on graduating him, the due process system can also be used to contest that decision.

If the hearing officer in due process or a court finds that the school system violated the student's rights by awarding a diploma, the available remedies include, most typically, rescission of the diploma and/or the right to receive educational services for a period of time to make up for the services lost because of the violation. (This is called "compensatory services.") If the parents have arranged for appropriate continuing services on their own, the remedies can also include reimbursement for the cost of those services. In at least one case, Puffer v. Raynolds, 761 F. Supp. 838 (D.Mass. 1990), the court left the diploma in place because the student had achieved sufficient credits to graduate, but ordered remedial services to support the student for her first semester at a community college to make up for the school system's failure to provide an IEP and services during her senior year. Finally, as in any other case where parents prevail, the remedies would include the right to reimbursement for all, or a substantial part, of the attorneys' fees and related costs incurred in bringing the case.

The age of 18

In your case there is at least one more legal issue to address: Your son is 18 and, unless he has been adjudicated as legally incompetent and placed under your guardianship, he is the only person authorized to respond to a proposed IEP or to accept or contest the award of a diploma. Depending on his cognitive abilities, his self-esteem, his self-awareness, and his social skills, he may be particularly vulnerable to the persuasion of school professionals who urge him to go ahead and graduate with his classmates. In that case you may need to work through a number of increasingly intense steps for his protection.

First, it is important to try to work with the school system, both through the TEAM process and informally, to try to persuade them to give up the notion of graduating your son. Use independent evaluators to develop alternative evidence of his status and continuing need for educational services. For his self-esteem, you might negotiate for him to participate in the graduation ceremony and be given a certificate other than a diploma to show that he is moving on with his peers to a new level of his life. You will want to explain to your son to the best of his understanding the reasons not to accept a diploma, and ask others who may have influence with him to do the same.

If your son's cognitive impairment prevents him from understanding what he is signing or agreeing to, you may be able to set aside his acceptance of an IEP or agreement to accept a diploma under your state's law pertaining to contracts, even without obtaining a guardianship. Ultimately, however, you may want to explore the legal standards and procedures for obtaining guardianship. In most states, if a person of legal age is unable for reasons of mental retardation or mental illness to make informed decisions about his personal and/or financial affairs and needs a guardian for his or her protection, a court will order the appointment of a guardian. This is obviously a complex process that will require consultation with an attorney. Sometimes state agencies which provide services to adults with retardation or other impairments can provide assistance with this process as well.